Private car park charge challenged

The legality of parking charges imposed by private car park operators on motorists who overstay is under challenge in the Court of Appeal.

In a hearing of interest to drivers up and down the country, a test case is being brought by driver Barry Beavis, from Chelmsford, who is challenging an £85 parking charge on the grounds that it is both unfair and unenforcable.

Mr Beavis was sent a charge letter from ParkingEye after he overstayed a two-hour limit at Riverside Retail Park car park in Chelmsford in April 2013.

Driver Barry Beavis, from Chelmsford, Essex, outside The Royal Courts of Justice in London

He took his case to Cambridge County Court, but Judge Moloney QC upheld the charge and ruled in May last year that it did not breach the Unfair Terms in Consumer Contracts Regulations.

Opening a two-day appeal, Sa'ad Hossain QC argued Judge Moloney had taken a wrong approach to the law and the charge was "a penalty clause" not binding on Mr Beavis.

Mr Hossain told three appeal judges as Mr Beavis listened: "The case raises questions of wide-ranging significance to private operators whose revenue and profit wholly or mainly derives from the levying of these charges for overstaying."

He added: "This case is of great interest to motorists in general, especially those who have - or may -overstay their required parking period."

Mr Hossain said Mr Beavis overstayed the maximum two-hour period of free parking at the Riverside car park managed by ParkingEye by 56 minutes.

"His extra 56 resulted in a cost of £85", said the QC. "The same situation would have applied had he only overstayed by 10 minutes."

The case, expected to last two days, is being heard by Lord Justice Moore-Bick, vice president of the civil appeal court, sitting with Lord Justice Patten and Sir Timothy Lloyd.

Mr Beavis, 48, a chip shop owner, said after he started his legal battle: " I didn't know I had overstayed until a speculative invoice arrived through the post.

"I call it that because they are not tickets, they are invoices dressed up as tickets."

Mr Beavis says he sought advice online on how to deal with the £85 fine and was advised it was not enforceable under civil law and to ignore it.

He said: "The thing that has angered me so much about the private parking companies is the way they bully people into paying their 'fines'."

Mr Beavis says he was sent a court summons to appear at Chelmsford Magistrates' Court and informed the fine had been increased to £150.

The AA said it hopes today's appeal "brings some clarity" to private parking enforcement and "rip-off" charges.

The motoring organisation said members polled by Populus felt they should not be charged any more than council car parks charge.

Edmund King, AA president, said: "We are now in an era of mass ticketing with cameras in nearly all large private car parks.

"There is no longer the threat of a clamp but instead the threat of debt collectors and ruined credit references.

"This has proved to be the case and many motorists just pay up disproportionate 'fines' as they are worried about their credit rating being affected if they don't pay up. In many cases the amounts charged for over-staying are a rip-off compared to what is charged in local authority car parks.

"We hope that this appeal brings some clarity to the situation as many parking enforcers have just been getting away with what they can.

"If this case fails then the Government should intervene to regulate parking on private land...."

Professor Stephen Glaister, director of the RAC Foundation, said: "Tens of millions of pounds hang on this case.

"If it goes in favour of drivers then there are potentially huge sums to be repaid to those who have been unfairly ticketed.

"It would also mean some parking companies having to radically rethink their business models.

"Ultimately this is less about the money and more about ensuring motorists get fair and transparent treatment.

"The frustrating thing is that it is something the Government should have sorted out years ago and whatever the ruling from the Court of Appeal there's still likely to be room for ministers to do more to regulate this area of parking."

In a packed courtroom, Mr Hossain said ParkingEye paid all the running and contractural costs for the Riverside car park and derived its "substantial" profit solely from parking charges, which were aimed at deterring motorists from overstaying .

To be lawful, charges levied should have been set at levels to compensate for any loss in achieving the aim of deterrence and not to make large profits.

In reality the losses to ParkingEye were very small administrative costs, and its charges were so excessive as to be unenforceable.

Mr Hossain said the county court judge had found there was "a strong element of penalty" in the ParkingEye business model and the size of its charges.

But the judge went wrong in law when he decided they were nevertheless "commercially justified" and therefore enforceable.

Mr Hossain also argued the county court had erred by concluding that the charges complied with the Unfair Terms in Consumer Contract Regulations.

He said the charges "impose a disproportionately high sum for breaches of obligations to the detriment of the users of the car park".

They were not imposed with "good faith", as required by the regulations.

Urging that the appeal be dismissed, Jonathan Kirk QC, appearing for ParkingEye Ltd, defended the county court's decision.

He described the charges imposed as "a commercially justified deterrent" for a city centre car park close to a station and close to a court which inevitably needed a system for discouraging motorists from parking for longer than the maximum time allowed.

Mr Kirk said the county court judge was right to find the level of charges neither extortionate nor unconscionable but within the bounds of reasonableness.